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Re: is this free?

Bruce Perens writes:

> From: Seth David Schoen <schoen@loyalty.org>
> > Some software distributors make you say "I am aware of the export laws"
> > and some make you say "I promise to abide by the export laws".  There is a
> > _huge_ difference between the two policies; the former is doing you a
> > service by preventing you from getting in trouble by accident, while the
> > latter is adding new restrictions on your behavior.
> Where was this argument when the license was being reviewed? As far as I
> can tell, we got to a point where everybody decided it was Open Source
> although one person had a complaint about its being tear-open.

I had put up a web page with my objections, and sent private e-mail about it
to the OSI board.  

It was reprinted on LinuxToday and linked from slashdot.  The OSI agreed
with my concern, and Apple removed the clause from the APSL.

I don't think license-discuss existed yet.

You can read the slashdot discussion:


Actually, you posted a few messages in that discussion.

(A lot of people missed my point there; I wasn't proposing that Apple
violate the law, but that Apple not help penalize or threaten other people
who do violate the law -- or users in countries with which the US has
political disputes.)

> The important thing it does here is let ATT off from being an accomplice.
> I don't believe that ascertaining that someone is merely _aware_ of the
> law lets you off from being an accomplice. But I'm not terribly comfortable
> with this clause.

Can it be that US law requires private citizens and companies to help
enforce the law by extracting promises like this?  

When I go to the hardware store and buy a tool or a dangerous chemical, I
don't have to promise not to use it to harm someone.  The store assumes that
I have responsibility for my own actions.

When I buy a BART ticket, it doesn't say on the back "This ticket is void if
you use it to go to the East Bay in order to commit a crime".

I could make many more analogies of cases in which people are willing to do
things for me without first getting me to promise to obey laws.  Some of
these analogies would be closer to the case of distributing software than

With free software licenses, there is a concerted effort to be idealistic
and also to attain high standards about things like being nondiscriminatory.
So it's appropriate to be uncomfortable about finding a clause in a free
software license which might sound perfectly reasonable and ordinary in a
proprietary software license.  If it doesn't meet the standards and ends up
being discriminatory, it's still not a free software license even if it is
necessary for the convenience or protection of the software author.

(When the APSL controversy came around, I _almost_ wanted to start a
thread "Can corporations write free software?" -- because some people were
telling me that "corporate lawyers" would ultimately always insist on
various conditions that sounded bad to me, and would reject the body of
existing free software licenses as too risky.  Obviously, lots of
corporations _are_ contributing to free software projects under traditional
licenses -- with the approval of their lawyers.  The question is whether
one set of lawyers or the other is misinformed, since they obviously seem
to disagree with one another.  Unfortunately, that thread wouldn't
accomplish anything useful without the participation of some of those actual
corporate lawyers.)

> > I don't think there was any BXA-restricted cryptography in Apple's release
> > of Darwin either.
> I'm sorry, I was not aware that Apple got in any sort of trouble about
> Darwin - and if so, it's still on the net under the APSL, so what has
> changed?

No, I mean that I objected to the original APSL, too, even though there was
no crypto in what they were proposing to release under it.

> > But now the author of the package, or a contributor, can sue Baz for
> > _copyright infringement_ for exporting the package illegally, because
> > this violates the license terms and so infringes copyright!
> You'd have to be convicted of breaking the export law first. This is not
> like a civil rights violation - no conviction, no reason to sue.

I don't think this would necessarily stop copyright holders from using their
position to threaten people over their export activities.  And I don't think
that copyright holders should have that power, with a free software license.

Even though a conviction under criminal law might be necessary for a
justified lawsuit, lots of people are willing to bring unjustified lawsuits,
even as a means of harassment or to try to get someone to settle.  The
protections provided to defendents under civil law are much less extensive
than the protections under criminal law.

Seth David Schoen <schoen@loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5

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